Military Necessity

Necessity Defence:

The necessity defence is a complete defence which protects an accused who was compelled to break the law in order to avoid an even worse consequence. For policy reasons (especially the fear of opening up the floodgates), the application of the defence is extremely narrow and it is rarely ever argued successfully. The principles governing the defence are as follows:
The ultimate question whether the accused honestly believed on reasonable grounds that his course of action was necessary in order to avoid the peril he was threatened with: Rodgers.
Relevant considerations include: * The seriousness of the harm which was being avoided: Loughnan. * The imminence of that harm: Loughnan. * The proportionality between the conduct of the accused and the harm which he was trying to avoid. * Whether there were any other reasonable alternatives to the course of action taken by the defendant (extremely important). – Uni Study Guides: Necessity Defence

Criminal defendants who intentionally and knowingly violate a criminal statute may nevertheless claim that they have committed no crime. These defendants make this assertion even though they admit committing the act and possessing the mental element proscribed by the law. For example, the Supreme Court of Rhode Island held that a member of the United States Naval Reserve Force, on duty as a despatch driver, was not amenable to the speed laws of the state while on his way to deliver a message, at the command of his superior officer, which that officer deemed urgent.’ The decision rested on the principal of public necessity, a principle which the court stated is “without application to cases which show a failure to comply with our laws and ordinances when no military necessity exists.” This holding is an example of the application of the defense of necessity. The defendant admitted intentionally exceeding the speed limit knowing the act was illegal. But under the pressure of circumstances the act was justified by “necessity.”
— The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil; by Edward Arnolds, Norman Garland [PDF].

..Political Necessity.

Common Law Necessity Defence Cases Resulting in Innocence Verdicts or Severe Mitigation of Sentencing:

In Regina v Dudley and Stephens (1884) 14 QBD 273, three crew members and a cabin boy escaped a shipwreck to spend eighteen days on a boat, over 1,000 miles from land, with no water and only two one pound tins of turnips. After four days, they caught and ate a small turtle. That was the only food that they had eaten prior to the twentieth day of being lost at sea. Ultimately, two of the crew members killed the ailing cabin boy and “fed upon the body and blood of the boy for four days.” Four days later, they were rescued. Two of the men were charged with murder. The court found that the cabin boy would likely have died by the time they were rescued and that the crew members, but for their conduct, would probably have died as well. The Queen’s Bench Division Judges held that the defendants were guilty of murder in killing the cabin boy and stated that their obvious necessity was no defence. The defendants were sentenced to death, but this was subsequently commuted to six months’ imprisonment.

In Spakes v. State, 913 S.W.2d 597 (Tex. Crim. App. 1996), the Texas Criminal Appeals Court allowed the jury to be instructed on the necessity defense before deliberating the verdict for an inmate whose three cellmates had planned an escape and threatened to slit his throat if he did not accompany them. The defendant inmate argued that because of the terribly violent crimes of which his cellmates had been convicted (one had bragged about chopping his girlfriend up with an ax), it was a necessity that he break the law, by accompanying them in their escape.

In United States Ashton, 24 F. Cas. 873, 873-74 (C.C.D. Mass 1834) (No. 14,470), sailors prosecuted for mutiny were found not guilty, after arguing the necessity for their mutiny based upon the dangerously leaky ship and that this danger had been concealed from them until after they left port. Circuit Justice Story found them not guilty of mutiny.

In United States Holmes, 26 F. Cas. 360 (E.D. Pa. 1842) (No. 15,383), Holmes was involved in a shipwreck, where the crew were charged with manslaughter for throwing sixteen passengers overboard in a frantic attempt to lighten a sinking lifeboat. The Prosecutor argued the passengers should be protected at all costs, whereas the Defence placed the jurors in the sinking lifeboat with the defendant. The Defendant was found guilty, but the jurors requested leniency, to which the court complied by sentencing the defendant to six months in prison and a fine of twenty dollars.

In the 1919 Arizona decision of State v. Wooten, commonly referred to as the Bisbee Deportation case, Professor Morris describes the acquittal of a Sherrif based upon the ‘necessity’ for committing Kidnapping as follows: “On April 26, 1917, soon after the United States entered World War I, the Industrial Workers of the World (IWW) called a strike of copper miners in Cochise County, Arizona. On July 12, 1917, the county sheriff led a posse that rounded up and deported over 1,000 members of the IWW. One of the posse was brought to trial on charges of kidnapping. He offered to prove that the strikers were trying to obstruct the war, had stored up a large amount of ammunition, and had threatened citizens; that help from federal troops had been sought to no avail; and that the leader of the local strike had told the sheriff he could no longer control his men. On these facts, he asserted the defense of necessity. The judge recognized the defense. He ruled that evidence of necessity could be excluded only if it were completely inadequate as a matter of law to establish the defense, and that the weight and sufficiency of the evidence were for the jury to decide—even in a case which “aroused great public interest.” The jury heard the evidence, deliberated for fifteen minutes, and returned a verdict of “Not Guilty” on the first ballot.

In Surocco v. Geary, 3 Cal. 69 (1853), a large fire threatened the unburned half of the then small town of San Francisco. A public officer ordered the destruction of houses to create a firebreak and was subsequently sued by one of the owners. On appeal, the California Supreme Court held that the action was proper because: “The right to destroy property, to prevent the spread of a conflagration, has been traced to the highest law of necessity, and the natural rights of man, independent of society and the civil government. “It is referred by moralists and jurists as the same great principle which justifies the exclusive appropriation of a plank in a shipwreck, though the life of another be sacrificed; with the throwing overboard goods in a tempest, for the safety of the vessel; with the trespassing upon the lands of another, to escape death by an enemy. It rests upon the maxim, Necessitas inducit privilegium quod jura private.” [Necessity leads to privileges because of private justice].

In the Name of Necessity: Military Tribunals and the Loss of American Civil Rights; by Marouf Hasian Jr.

According to Civil Disobedience and the Necessity Defence[1]: “[If] the [necessity] defense is allowed, the jury is called upon to weigh controversial political issues and to function as the “conscience of the community.” “Reflected in the jury’s decision is a judgment of whether, under all the circumstances of the event and in the light of all known about the defendant, the prohibited act, if committed, deserves condemnation by the law.” In cases where judges have been persuaded to allow the necessity defense, juries have, often enough, delivered not guilty verdicts. [..] When judges have allowed the necessity defense to go to a jury in civil disobedience cases, more often than not the defendants are acquitted. There are a number of cases in which charges were dropped after the judge announced that the necessity defense would be permitted.”

In State v. Mouer (Columbia Co. Dist. Ct., Dec. 12-16, 1977), dozens of protestors in Oregon who were conducting a civil disobedience sit-in at a nuclear power plant were arrested and charged with criminal trespass. At trial, the judge allowed the defendants to raise the state necessity defense (called the choice of evils defense) and the defendants were acquitted by the jury.

In People v. Brown (Lake County, Jan. 1979), protesters in Illinois blocked the entrance to a nuclear power plant and were charged with criminal trespass. Relying on the defense of necessity, they argued that they had not created the situation that they had sought to correct and had reasonably believed that their conduct was necessary to avoid the harm of a nuclear accident. A doctor testified for the defense about the damaging effects of low-level radiation. All of the defendants were subsequently acquitted.

In People v. Block (Galt Judicial Dist., Sacramento Co. Mun. , Aug. 14, 1979), eleven California protestors were charged with trespass and resisting arrest in connection with a March 31, 1979 demonstration at the Rancho Seco Nuclear Power Plant. The defendants had climbed over a fence and staged a sit-in on the grounds of the plant. At trial, the judge allowed the necessity defense to be presented to the jury. “After seven weeks of trial, nine of the defendants received a split jury verdict and one was acquitted, apparently because he had a long history of activism and had convinced the jury that he had exhausted all legal means to stop the harm” posed by the power plant. The cases against those defendants who received a split jury verdict were eventually dropped.

In California Lemnitzer, No. 27106E (Pleasanton-Livermore Mun. Ct. Feb. 1, 1982) the trial of a protestor who condemned the development of nuclear weapons at the Lawrence Livermore Lab in California ended in a hung jury after the court allowed the presentation of evidence supporting the necessity defense. On retrial, the protestor, John Lemnitzer, was acquitted.

In Vermont v. Keller, No. 1372-4-84-CNCR (Vt. Dist. Ct. Nov. 17, 1984) protestors staged a sit-in at the Vermont office of United States Senator Robert Stafford in an effort to get a public meeting about American policy in Central America. These actions resulted in their arrest on trespass charges. At trial, the court allowed the defendants to raise the defenses of necessity, international law, including the Nuremberg principles, and the First and Fourteenth Amendments. The court allowed a number of impressive experts to testify about human rights atrocities in El Salvador and Nicaragua, as well as the important role of protest in American foreign policy. The defendants further testified they had attempted “every reasonable manner to communicate” with the Senator. The jury acquitted all of the defendants.

In Michigan v. Jones et al., Nos. 83-101194-101228 (Oakland County Dist. Ct. 1984) the State of Michigan held nine separate trials prosecuting fifty-one defendants who blocked access to a plant where cruise missile engines were being manufactured. The defendants were charged with trespass, disturbing the peace, blocking access, and conspiracy. In a trial where the necessity defense was allowed, the jury acquitted the defendants of all charges except failure to obey a traffic officer. In other cases where the necessity defense was allowed, the juries acquitted the defendants on all charges. In trials where the judge did not allow necessity defenses, the defendants were convicted on several counts.

In Michigan v. Largrou, Nos. 85-000098, 99, 100, 102 (Oakland County Dist. Ct. 1985), three protestors at a Michigan cruise missile plant were charged in 1985 with trespass and criminal damage to a fence. The court found that although the defendants willfully violated the law, they did so without malice and for the public purpose of protest. All three were acquitted.

In People v. Jarka, Nos. 002170, 002196-002212, 00214, 00236, 00238 (Ill. Cir. Ct. Apr. 15, 1985), an Illinois jury acquitted twenty defendants who protested against the American military invasion of Central America by conducting a sit-in which blocked the road to the Great Lakes Naval Training Center. The protestors successfully invoked the doctrine of necessity and were allowed to put eight expert witnesses on the stand to offer evidence of the effect of nuclear weapons, American intervention in Central America, and international law. The trial judge gave the jury an instruction that stated that the threat and use of nuclear weapons violated international law.

In Chicago v. Streeter, Nos. 85-108644, 48, 49, 51, 52, 120323, 26, 27 (Cir. Ct., Cook County Ill. May 1985), a jury was faced with eight protestors who were charged with trespass for refusing to leave the office of the South African consul. The jury was allowed to hear expert evidence about the defense of necessity and international crimes committed by the apartheid policies of South Africa. It took the jury two and a half hours to acquit the defendants.

In Washington Heller (Seattle Mun. Ct. 1985), eight doctors were charged with trespassing for protests staged on the porch of the home of the South African consul. They were allowed to raise the defense of necessity and admit expert testimony about the medical and other effects of apartheid. The Seattle jury acquitted after little more than an hour and made a post-trial statement supporting anti-apartheid protests.

In Colorado v. Bock (Denver County Ct. June 12, 1985), twenty-two Pledge of Resistance members were charged with trespass for occupying the office of a United States Senator from Colorado to protest American policy in Central America. The jurors, who were allowed to hear evidence of necessity, were instructed that the defendants could use civil disobedience only as an “emergency measure to avoid imminent public or private injury” but that the injury did not have to be directed against the defendants. The jury acquitted all of the defendants.

In Massachusetts v. Carter, No. 86-45 CR 7475 (Hampshire Dist. Ct. 1987), the daughter of former President Jimmy Carter, Amy Carter, was arrested with fifty-nine others and charged with trespass and disorderly conduct at Central Intelligence Agency (CIA) recruitment activities on the campus of the University of Massachusetts at Amherst. The fifteen defendants were allowed to present evidence to support the necessity defense, international law, and the Nuremberg The defendants argued that the crimes they committed were of far lesser harm than those being committed by the CIA in Central America and offered testimony by a former contra leader and former CIA and government officials. The judge instructed the jury that they could acquit the defendants if they concluded that the defendants acted out of a belief that their protest would help stop the clear and immediate threat of public harm. The jury acquitted them in three hours.

In Washington v. Bass, Nos. 4750-038, -395 to -400 (Thurston County Dist. Ct. April 8, 1987), several dozen students of Evergreen State College sat in the Washington State Capitol in support of an anti-apartheid disinvestment bill. Seven students refused orders to leave and were arrested and charged with trespass and disorderly conduct. At their trial, the defendants were allowed to admit statistical and expert evidence of necessity, international law, and the Nuremberg defense about the situation in South Africa. The jury acquitted all of the defendants.

In Illinois v. Fish (Skokie Cir. Ct. Aug. 1987) twenty-six people were arrested for trespassing at the Arlington Heights Army Reserve Training Center. The trial court allowed the jury to hear evidence about the necessity defense. All of the defendants were acquitted.

In State v. McMillan, No. D 00518 (San Luis Obispo Dist. Mun. Ct., Cal. Oct. 13, 1987), fourteen protestors blockaded Diablo Canyon Nuclear Power Plant to prevent the loading of fuel rods. The trial judge allowed fourteen expert witnesses to offer testimony about related potential harm for the area and allowed the defendants to testify about their own related fears. The judge applied the necessity defense and acquitted the defendants.

In 1988, a North Carolina court acquitted two Tuscarora Indians of charges in connection with their taking of twenty hostages at the office of a local newspaper to protest the alleged corruption of county officials.

In Massachusetts v. Schaeffer-Duffy (Worcester Dist. Ct. 1989), five defendants tried to pass out leaflets to employees at a GTE nuclear weapons facility and prayed outside the building when they were denied entry. The judge denied the prosecutor’s motion in limine to prevent evidence of necessity. The jury was allowed to hear the defendants’ testimony about their personal efforts to stop nuclear weapons and their religious beliefs, and expert testimony about the threats of the MX missile, religious teachings against nuclear weapons, and the historical effectiveness of civil disobedience. The jury acquitted the defendants of trespass.

In 1990, in Omaha, Nebraska, a jury acquitted seventeen anti-abortion protestors because of the necessity defense. The trial judge relied on the defense to overturn the trespassing convictions of an additional eighteen defendants.

In West Valley City v. Hirshi, No. 891003031-3 MC (Salt Lake County, Ut. Cir. Ct., W. Valley Dept. 1990), protestors were charged with criminal trespass after entering property on which Trident II nuclear missile engines were being manufactured in Salt Lake City. The trial judge permitted evidence and instructed the jury on defenses based on necessity, international law, the First Amendment, and the Nuremberg Principles. The jury acquitted the defendants.

In People v. Gray, 571 N.Y.S.2d 851, 861-62 (N.Y. Crim. Ct.1991), a two-day bench trial resulted in the acquittal of six protestors for disorderly conduct because of the necessity defense. The protestors had blocked traffic in Manhattan to protest the opening of a bike and pedestrian lane to vehicular traffic. Judge Laura Safer-Espinoza issued a forty-two page decision reviewing dozens of decisions involving the necessity defense and provided the most extensive judicial overview of the necessity defense in state courts to date.

In 1991, a Chicago jury acquitted a Catholic priest of criminal charges for damage to the inner-city neighborhood where he was pastor after he admitted painting over three tobacco- and alcohol-related billboards. The defendant argued he should not be convicted because of the necessity defense. The jury deliberated ninety minutes before acquitting the defendant.

In 1993, a jury acquitted a Chicago AIDS activist charged with illegally supplying clean needles because of the necessity defense.

In California Halem, No. 135842 (Berkeley Mun. Ct. 1991), the jury came to the same conclusion after hearing evidence that dispensing clean needles without a prescription, though illegal, was necessary to protect people from the spread of the AIDS virus.

In Washington v. Brown, No. 85-1295N (Kitsap County Dist. Ct. N. 1985), twenty-four protestors held a vigil in Washington State in protest of a “white train” carrying nuclear weapons. The state arrested twenty of the protestors and charged them with criminal trespass and conspiracy. The defendants filed extensive briefs on the right to present particular defenses to the jury, in support of their motion to dismiss conspiracy charges, and in opposition to the government’s motion in limine. The judge dismissed the conspiracy charges and did not admit evidence on the necessity defense, but it did allow Daniel Ellsberg to testify as an expert on why first-strike nuclear warheads on a train are a potential threat to peace. One defendant pled guilty to both charges. The jury acquitted the remaining nineteen defendants.

In Washington Karon, No. J85-1136-39 (Benton County Dist. Ct. 1985), four defendants blockaded a federal Plutonium-Uranium extraction facility at Hanford Nuclear Reservation. They were arrested and charged with disorderly conduct and failure to disperse. The defendants filed motions in limine to raise necessity, Nuremberg principles, and the Geneva and Hague Conventions as defenses. The trial judge allowed Nuremberg and necessity defenses, permitted expert testimony regarding radiation contamination, and refused expert testimony regarding nuclear war. The court agreed to give international law instructions to the jury. Immediately after the court ruling permitting scientists to testify on radiation contamination, the prosecution moved to dismiss the case and the court granted the motion.

In United States v. Braden (W.D. Ky. 1985), twenty-nine demonstrators entered the office of a United States senator as part of the Pledge of Resistance. At their arraignment, the defendants announced their intent to use Nuremberg, necessity, and First Amendment defenses (freedom of speech includes freedom to be heard; today the only way to be heard is to act). The government dropped all charges prior to trial.

In California Jerome, Nos. 5450895, 5451038, 5516177, 5516159 (Livermore-Pleasanton Mun. Ct., Alameda County, Traffic Div. 1987), more than thirty protestors blocked the main gate to the Lawrence Livermore Nuclear Weapons Lab in a nonviolent sit-in. They were arrested for traffic offenses of blocking and delaying traffic. The Traffic Commissioner agreed to consider expert testimony on the necessity defense and international law (including Nuremberg Principles, Geneva Protocols, and the Hague Convention) via affidavits. The defendants filed affidavits for Daniel Ellsberg (on the effectiveness of nonviolent protests in arousing citizen action), Frank Newman (on international law) and Charles Schwartz (on the role of Livermore Lab in promoting the arms race). Before trial, the judge granted the prosecution’s request to drop all charges.

In Tulee v State of Washington (315 US 681, 683-684 [1941]), the Yakima Nation defendant pleaded to ‘conservation necessity’, was charged with violating a state law requiring a license fee to catch salmon with a net; in spite of the treaty that secured the Yakima’s right of “taking fish at all usual and accustomed places”. The Supreme Court held that the state’s regulatory attempt to impose a license fee on members of the Yakima was unconstitutional; as it was in conflict with the existence of a treaty fishing right.

In 1979 in Waukegan Illinois: Lake County Circuit Court Judge Alphonse Witt found twenty demonstrators innocent of criminal trespass; for their 7 October protest of sitting in front of the three gates to the Commonwealth Edison’s nuclear power plant in Zion, blocking traffic to the facility[2].

In 2008 in the UK, a jury in the Maidstone crown court acquitted six Greenpeace protesters; who had scaled a 200-metre chimney at Kingsnorth power station, Hoo, Kent; on 8 October. The Activists had attempted to shut down the station by occupying the smokestack and painted the word ‘Gordon’ down the chimney; as part of their educating the public about the impending threats of climate change.[3]

On 02 September 2014 Delta Five activists — Mike LaPointe, Patrick Mazza, Jackie Minchew, Liz Spoerri and Abby Brockway, members of Rising Tide Seattle[4] — entered the BNSF Delta railyard and blockaded a train transporting Bakken shale oil at the Delta rail yard in Everett, Washington with a tripod of steel rods to which they locked themselves. Motivated by frustration about the climate[5], workers safety and public health from the recklessness of the oil and railroad industries, they stayed on the tracks for eight hours before BNSF police arrested and charged them with trespassing and obstructing a train. The jury found them not guilty of obstruction; guilty of tresspas; but would not face jail time or claims of financial harm. One juror reportedly told them, “Thanks for the education.”[6]

Military Necessity.

Nuremberg Case Law: Rendulic Rule:

Law of War and Geneva Convention: Lawful Use of Force Concepts.

The Military Necessity Rendulic Rule was decided in the High Command Trial: Trial of Wilhelm von Leeb and Thirteen Others: United States Military Tribunal, Nuremberg; 30th December, 1947 – 28th October 1948.

Wilhelm von Leeb and the other thirteen accused in this case were former high-ranking officers in the German Army and Navy, and officers holding high positions in the German High Command (OKW). All of them were charged with Crimes against Peace, War Crimes, Crimes against Humanity and with Conspiracy to commit such The War Crimes and Crimes against Humanity charged against them included criminal responsibility in connection with the implementation and execution of the so-called Commissar Order, the Barbarossa Jurisdiction Order, the Commando Order, the Night and Fog Decree, the Hostages and Reprisals Orders, murder and ill-treatment of prisoners of war and of the civilian population in the occupied territories and their use in prohibited work; discrimination against and persecution and execution of Jews and other sections of the population by the Wehrmacht in co-operation with the Einsatzgruppen and Sonderkommandos of the SD, SIPO and the Secret Field Police; plunder and spoliation and the enforcement of the slave labour programme of the Reich. They were acquitted of some of the charges, where it was ascertained that military necessity existed objectively and/or subjectively in the particular circumstances.

Lothar Rendulic

In October 1944, Generaloberst Lothar Rendulic was Armed Forces Commander North, which included command of Nazi Forces in Norway. Following World War II, he was prosecuted for, among other charges, issuing an order “for the complete destruction of all shelter and means of existence in, and the total evacuation of the entire civilian population of the northern Norwegian province of Finmark…” Entire villages were destroyed, bridges and highways bombed, and port installations wrecked. Tried by an American military commission, Rendulic’s defence was military necessity. He presented evidence that the Norwegian population would not voluntarily evacuate and that rapidly approaching Russian forces would use existing housing as shelter and exploit the local population’s knowledge of the area to the detriment of retreating German forces. The Tribunal acquitted Rendulic of the charge, finding reasonable his belief that military necessity mandated his orders. His case offers one of the few adjudicated views of what constitutes military necessity.[7]

“….. We are not called upon to determine whether urgent military necessity for the devastation and destruction in the province of Finmark actually existed. We are concerned with the question whether the defendant at the time of its occurrence acted within the limits of honest judgement on the basis of the conditions prevailing at the time. The course of a military operation by the enemy is loaded with uncertainties… It is our considered opinion that the conditions, as they appeared to the defendant at the time, were sufficient upon which he could honestly conclude that urgent military necessity warranted the decision made. This being true, the defendant may have erred in the exercise of his judgement but he was guilty of no criminal act. We find the defendant not guilty of the charge.”

International Criminal Court:

Military necessity is governed by several constraints: an attack or action must be intended to help in the military defeat of the enemy; it must be an attack on a military objective, and the harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated.

Luis Moreno-Ocampo, Chief Prosecutor at the International Criminal Court, investigated allegations of war crimes during the 2003 invasion of Iraq and he published an open letter containing his findings. In a section titled “Allegations concerning War Crimes ” he did not call it military necessity but summed up the term:

Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv).

Article 8(2)(b)(iv) criminalizes:
Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 Additional Protocol I to the 1949 Geneva Conventions, but restricts the criminal prohibition to cases that are “clearly” excessive. The application of Article 8(2)(b)(iv) requires, inter alia, an assessment of:
(a) the anticipated civilian damage or injury;
(b) the anticipated military advantage;
(c) and whether (a) was “clearly excessive” in relation to (b).

International Court of Justice

.

Military Necessity Justifies ‘Self Defense’ use of Nuclear Weapons:

Hayashi writes under ‘Self Preservation/Self Defense’: “Some commentators who rightly reject Kriegsrason[9] still advocate a scope of military necessity that would, under certain circumstances, go beyond express exceptional clauses. For example, in Julius Stone’s view, military necessity does – or should, in any event – entitle a state at war to depart from its duties under international law on account of self-preservation. Stone clearly embraced the criticism of what he called military necessity in “such an extended German sense.” His doubts concerned whether this criticism, while valid in relation to Kriegsrason, could be defensibly extended so as to exclude self-preservation[10].

In the International Court of Justice’s advisory opinion of 8 July 1996, on The legality of the threat or use of nuclear weapons[11], the final paragraph states “that such threat or use would generally be contrary to international humanitarian law. The opinion went on to state, however, that the court “cannot lose sight of the fundamental right of every State to survival, and thus its right to resort to self-defence . . . when its survival is at stake.” The court held, by seven votes to seven, with its president‘s casting vote, that it “cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self defence in which the very survival of a State would be at stake.”

Hayashi notes: “It may be argued that the courts ambivalence goes beyond the confines of jus ad bellum – the opinion speaks of “an extreme circumstance of self-defence” – to encompass jus in bello[12]. Some of the dissenting judges[13] and experts[14] have noted with concern that the opinion may be seen as embracing the view that situations constituting or analogous to self-preservation and involving the right of self-defence may justify the threat or use of nuclear weapons notwithstanding its general incompatibility with international humanitarian law.”

[1] John Alan Cohan, Civil Disobedience and the Necessity Defense, 6 PIERCE L. REV. 111 (2007).. Available at: http://scholars.unh.edu/cgi/viewcontent.cgi?article=1093&context=unh_lr
[2] 30 Jan 1979: Chicago Tribune: Defense was ‘necessity’: 20 nuclear plant protestors clearedhttp://archives.chicagotribune.com/1979/01/30/page/25/article/defense-was-necessity[3] 11 Sept 2008: The Guardian: Not guilty: the Greenpeace activists who used climate change as a legal defence. https://www.theguardian.com/environment/2008/sep/11/activists.kingsnorthclimatecamp[4] Delta Five Trial: http://delta5trial.org/the-action/[5] Climate Disobedience: The Climate Necessity Defense: A Legal Tool for Climate Activistshttp://www.climatedisobedience.org/necessitydefense[6] 15 January 2016: Common Dreams: No Jail Time for Delta 5 in Historic Case That ‘Welcomes Jurors to Climate Movementhttp://www.commondreams.org/news/2016/01/15/no-jail-time-delta-5-historic-case-welcomes-jurors-climate-movement[7] UN War Crimes Commission: Law Reports of Trials of War Criminals: Vol XII: German High Command Trial [PDF]. US Military Tribunal Nuremberg: High Command Trial: US of America v Wilhelm von Leeb et al: Judgement of 27 October 1948 [PDF]. The Law of Armed Conflict: International Humanitarian Law in War, by Gary D Solis, pg. 313. The Legacy of the International Criminal Tribunal for the Former Yugoslavia, by Bert Swart, Alexander Zahar, Goran Sluiter.pg.286. Targeted Killing in International Law, by Nils Melzer. pg.297.
[8] Wikipedia: Military Necessity: Moreno-Ocampo 2006, See section “Allegations concerning War Crimes” Pages 4,5.
[8] This means “the necessities of war take precedence over the rules of war.”
[9] Julius Stone, Legal Controls of International Conflict: A Treatise on the Dynamics of Disputes – And War – Law (1954): pp 352-53 352-53 (“This reasoning, however, would forbid departure from the rules of war-law even in face of the direst needs of survival. Yet it remains ground common to British, American, French, Italian and other publicists, as well as German, that a State is privileged, in title of self-preservation, to violate its ordinary duties under international law, even towards States with which it is at peace; and may also itself determine when its self-preservation is involved. Neither practice nor the literature explain satisfactorily how the privilege based on self-preservation in times of peace can be denied to States at war. If, as the Writer believes, the German doctrine is properly condemned, a frank review of the meaning of the self-preservation doctrine remains all the more urgent.”) (emphasis added, footnotes omitted). But see N.C.H. Dunbar, Military Necessity in War Crimes Trials, in BRIT. Y.B. INT’L L. 442, 443 (1952) (“[T]he phrase ‘necessity in self-preservation’ is more properly employed to describe a danger or emergency of such proportions as to threaten immediately the vital interests, and, perhaps, the very existence, of the state itself. Military necessity should be confined to the plight in which armed forces may find themselves under stress of active warfare.”).
[10] http://www.un.org/law/icjsum/9623.htm
[11] Christopher Greenwood, Jus Ad Bellum and Jus in Bello in the Nuclear Weapons Advisory Opinion, in International Law, The International Court of Justice and Nuclear Weapons 247, 249-50 (Lawrence Boisson de Chazournes & Philippe Sands eds, 1999)
[12] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, at 590 (Judge Higgins, dissenting); at 513-20 (Judge Weeramantry, dissenting).
[13] International Law, The International Court of Justice and Nuclear Weapons: (i) Luigi Condorelli, Le droit international humanitaire, ou l’exploration par la cour d’une terra a peu pres incognita pour elle, at 229, 244-45; (ii) Judith Graham, Necessity and Proportionality in Jus ad Bellum and Jus in Bello, note 46, at 275, 292; (iii) Marcelo G Kohen, The Notion of ‘State Survival’, note 46, at 293, 310.